Shannon Labrice Williams v. the State of Texas ( 2021 )

In the
Court of Appeals
Second Appellate District of Texas
at Fort Worth
___________________________
No. 02-20-00104-CR
___________________________
SHANNON LABRICE WILLIAMS, Appellant
V.
THE STATE OF TEXAS
On Appeal from the 297th District Court
Tarrant County, Texas
Trial Court No. 1515715D
Before Sudderth, C.J.; Womack and Walker, JJ.
Memorandum Opinion by Justice Womack
MEMORANDUM OPINION
I. INTRODUCTION
A jury convicted appellant Shannon Labrice Williams of continuous sexual
abuse (CSA) of a young child and of indecency with a child by contact. The trial
court sentenced Williams to fifty years’ confinement on the CSA count and to ten
years’ confinement on the indecency count, with the sentences to be served
concurrently. Williams raises five issues on appeal. In his first three issues, Williams
complains about alleged errors in the jury charge. In his final two issues, Williams
complains that the trial court abused its discretion by admitting certain evidence at his
trial. We will affirm.
II. BACKGROUND
Williams was indicted for the continuous sexual abuse of Kaylee,1 a relative,
and for indecency with Kaylee by contact.2 At Williams’s trial, Kaylee’s mother
explained that Williams lived with Kaylee’s family at various points between 2012 and
2017 or 2018.3 Kaylee’s mother testified that she and her husband allowed Williams
To protect the anonymity of the minor in this case, we will use aliases to refer
1
to some of the individuals named herein. See Tex. R. App. P. 9.8 cmt., 9.10(a)(3);
McClendon v. State, 643 S.W.2d 936, 936 n.1 (Tex. Crim. App. [Panel Op.] 1982).
Williams was indicted for other counts relating to his sexual abuse of Kaylee,
2
but those other counts were later waived by the State.
Kaylee’s family consisted of Kaylee, her mother, her father, and her two
3
brothers.
2
to live with them during these periods because Williams “didn’t have anywhere to go,
and he is family.” She testified that Williams stayed with the family at an apartment
complex where they were residing for part of the summer in 2012 or 2013, around the
time when Kaylee was in the first grade.4 At the apartment complex, Kaylee had her
own bedroom, while Williams slept in the living room. Kaylee’s mother testified that
Williams later stayed with the family for around six months in 2014 or 2015 at a house
where they were residing. Williams also stayed with the family at their home for
“about a year” in 2017 or 2018 when Kaylee was “going into fifth and sixth grade.”
In that home, Kaylee had her own bedroom upstairs, her brothers shared a bedroom
upstairs, Williams slept in an office upstairs, while Kaylee’s parents slept in a bedroom
downstairs.
Kaylee testified5 that when she was six, Williams entered her bedroom and
whispered “very sexual things in [her] ear,” although he did not touch her on that
occasion. Kaylee stated that Williams touched her inappropriately for the first time a
couple of years later—she said she was in the fourth grade—when he entered her
bedroom at night, removed her pants and underwear, licked her vagina, and lifted up
her shirt and fondled her breasts. Kaylee testified about another occasion that
occurred in “like the beginning of fifth grade,” where Williams “did the exact same
4
Kaylee was born in 2006.
5
Kaylee was thirteen at the time of trial.
3
thing”—she again described Williams entering her bedroom at night, removing her
pants and underwear, licking her vagina, and fondling her breasts. Kaylee testified
that Williams entered her room at night and sexually abused her approximately once
or twice a week over a two-year period when she was in the fourth and fifth grades.
She testified that on some occasions Williams would lick her vagina, on other
occasions he would “put his hand on [her] vagina,” on some occasions he would
touch her breasts, and that on one occasion he grabbed her hand and made her touch
his penis.
Kaylee testified that she was having suicidal thoughts when she was in fifth
grade and that she told some of her friends about the abuse. One of her friends told a
school counselor that Kaylee was having suicidal thoughts, and Kaylee was called in to
talk to the counselor. At trial, the counselor testified that Kaylee told her that
Williams “had sexually abused her and had since she was six years old.” The
counselor testified that Kaylee described how Williams would touch her breasts, that
he would “suck down there”—referring to her vagina area—and that he would make
her touch him on his “private parts.” The counselor testified that she contacted Child
Protective Services (CPS) immediately after Kaylee reported the abuse.
Following her outcry to the counselor, Kaylee was taken to a sexual assault
nurse examiner (SANE) for a sexual assault exam. The SANE’s report was admitted
into evidence over Williams’s global hearsay objection.
4
At trial, Kaylee’s cousin, Aubrey, testified about an occasion when she was
playing a game with Williams and Kaylee, and she saw Williams put his hand under
Kaylee’s skirt. Later in the trial, Kaylee testified, over Williams’s objection, that a
report had been made to CPS years earlier regarding Williams supposedly molesting
both Kaylee and Aubrey.
At the charge conference, Williams’s counsel complained that the charge did
not require the jury to unanimously agree on the specific underlying acts of sexual
abuse. The trial court noted the complaint but stated that the complained-of
instruction was an accurate reflection of state law. Williams made no other
complaints regarding the charge to the trial court.
III. DISCUSSION
A. Complaints Regarding Alleged Errors in the Jury Charge
Williams’s first three issues concern alleged errors in the jury charge.
1. Standard of Review
A trial court is required to prepare a jury charge that accurately sets out the law
applicable to the specific offenses charged. Delgado v. State, 235 S.W.3d 244, 249 (Tex.
Crim. App. 2007). If a defendant complains on appeal about an erroneous instruction
in the charge (or about the lack of a proper instruction) regarding an area of law that
is considered the law applicable to the case, whether the defendant objected to the
trial court determines the applicable standard for assessing harm. See Nava v. State,
415 S.W.3d 289, 298 (Tex. Crim. App. 2013); Almanza v. State, 686 S.W.2d 157, 171
5
(Tex. Crim. App. 1985) (op. on reh’g). If a proper objection was made to the trial
court regarding an error in the jury charge, a reviewing court determines whether the
error caused the defendant some harm. Almanza, 686 S.W.2d at 171. If no objection
was made to the trial court, a reviewing court determines whether the error caused the
defendant egregious harm. Nava, 415 S.W.3d at 298; Almanza, 686 S.W.2d at 171.
Egregious harm is a “high and difficult standard” to meet, and such a
determination must be “borne out by the trial record.” Villarreal v. State, 453 S.W.3d
429, 433 (Tex. Crim. App. 2015). The analysis for egregious harm is fact specific and
is done on a “case-by-case basis.” Gelinas v. State, 398 S.W.3d 703, 710 (Tex. Crim.
App. 2013). Errors that result in egregious harm are those “that affect the very basis
of the case, deprive the defendant of a valuable right, vitally affect the defensive
theory, or make a case for conviction clearly and significantly more persuasive.”
Taylor v. State, 332 S.W.3d 483, 490 (Tex. Crim. App. 2011). We consider the
following factors in evaluating egregious harm: (1) the entire jury charge; (2) the state
of the evidence, including the contested issues and weight of probative evidence;
(3) the argument of counsel; and (4) any other relevant information revealed by the
record of the trial as a whole. Almanza, 686 S.W.2d at 171. “An egregious harm
determination must be based on a finding of actual rather than theoretical harm.”
Cosio v. State, 353 S.W.3d 766, 777 (Tex. Crim. App. 2011).
6
2. Complaint that the Trial Court Erred by Omitting All Culpable
Mental States in the Charge’s Application Paragraph
In his first issue, Williams argues that the trial court erred by omitting all
culpable mental states in the charge’s application paragraph. The crux of Williams’s
argument is that the charge did not contain a culpability requirement for CSA in either
the abstract or application portions and that although the abstract portion contained a
culpability requirement for the underlying offenses, the application paragraph did not
contain a culpability requirement for the underlying offenses.
As to the argument that the charge lacked a culpability requirement for CSA,
Williams candidly acknowledges that several Texas courts of appeals have held that
the CSA statute does not require general mental culpability beyond the mental
culpability required for its constituent offenses. See Evans v. State, No. 06-20-00035-
CR, 2020 WL 6685038, at *5 (Tex. App.—Texarkana Nov. 13, 2020, pet. ref’d) (mem.
op., not designated for publication); Beyer v. State, No. 06-19-00263-CR, 2020 WL
3865735, at *1 (Tex. App.—Texarkana July 9, 2020, pet. ref’d) (mem. op., not
designated for publication); O’Neal v. State, No. 06-19-00216-CR, 2020 WL 3455638,
at *3 (Tex. App.—Texarkana June 24, 2020, no pet.) (mem. op., not designated for
publication); Colon v. State, No. 13-19-00087-CR, 2020 WL 1467149, at *3–4 (Tex.
App.—Corpus Christi March 26, 2020, no pet.) (mem. op., not designated for
publication); Buxton v. State, 526 S.W.3d 666, 684 (Tex. App.—Houston [1st Dist.]
7
2017, pet. ref’d); Lane v. State, 357 S.W.3d 770, 776–77 (Tex. App.—Houston [14th
Dist.] 2011, no pet.).
We agree with our sister courts that the CSA statute does not require general
mental culpability beyond the mental culpability required for its constituent offenses.
The CSA statute states that a person commits the offense of CSA of a young child if
(1) during a period that is 30 or more days in duration, the person commits two or
more acts of sexual abuse, regardless of whether the acts of sexual abuse are
committed against one or more victims; and (2) at the time of the commission of each
of the acts of sexual abuse, the actor is seventeen years of age or older and the victim
is a child younger than fourteen years of age, regardless of whether the actor knows
the age of the victim at the time of the offense. Tex. Penal Code Ann. § 21.02(b).
This portion of the statute requires no additional mens rea because an “act of sexual
abuse” under the statute “means any act that is a violation of one or more of the
[listed] penal laws,” including indecency with a child and aggravated sexual assault. Id.§ 21.02(c). As a result, the CSA statute “is defined in terms of other acts that by their
terms require a culpable mental state” and “need not prescribe some additional mental
state because its actus reus is merely the repeated commission of acts already requiring
culpable mental states.” Lane, 357 S.W.3d at 776 (emphasis omitted).
Williams further complains that the charge’s application paragraph did not
contain a culpability requirement for the underlying offenses. But, “[w]hen we review
a charge for alleged error, we must examine the charge as a whole . . . .” Dinkins v.
8
State, 894 S.W.2d 330, 339 (Tex. Crim. App. 1995). And while the application
paragraph “‘specifies the factual circumstances under which the jury should convict or
acquit,’ it need not set forth specifically all of the elements necessary to convict a
defendant if those elements have been accurately set forth in another section of the
charge.” Riley v. State, 447 S.W.3d 918, 923 (Tex. App.—Texarkana 2014, pet. ref’d)
(quoting Vasquez v. State, 389 S.W.3d 361, 367 (Tex. Crim. App. 2012)). Accordingly,
“the Texas Court of Criminal Appeals has held that there is no error where the
abstract portion of the charge supplies a culpable mental state not specified in the
application paragraph.” O’Neal, 2020 WL 3455638, at *4 (citing Dinkins, 894 S.W.2d
at 339 and Riley, 447 S.W.3d at 923–94); see also Vasquez, 389 S.W.3d at 367 (“[I]f the
application paragraph necessarily and unambiguously refers to another paragraph of
the jury charge, then a conviction is authorized, and the trial judge need not sua sponte
cut and paste that definition into the application paragraph.”) (internal quotations
omitted).
And, here, the abstract portion of the jury charge instructed the jury regarding
the mens rea requirements for the underlying acts of sexual abuse, and the application
paragraph referred back to the definitions of the underlying acts, referring to them by
name. Thus, we reject Williams’s contention that the trial court erred by omitting all
culpable mental states in the charge’s application paragraph. See Dinkins, 894 S.W.2d
at 339; O’Neal, 2020 WL 3455638, at *3.
9
Even assuming the trial court had erred, Williams did not object to the jury
charge on this basis, so we could only reverse if egregious harm occurred as a result of
the error. See Nava, 415 S.W.3d at 298; Almanza, 686 S.W.2d at 171. As mentioned
above, we consider the following factors in evaluating egregious harm: (1) the entire
jury charge; (2) the state of the evidence, including the contested issues and weight of
probative evidence; (3) the argument of counsel; and (4) any other relevant
information revealed by the record of the trial as a whole. Almanza, 686 S.W.2d at
171.
In considering the charge as a whole, we note that the abstract portion of the
jury charge instructed the jury regarding the mens rea requirements for the underlying
acts of sexual abuse. Williams acknowledges that the abstract portion included
instructions on the mens rea of the underlying offenses, noting that “[t]he only mens
rea that was mentioned was in the abstract and only as to the underlying offenses.”
In considering the state of the evidence, Kaylee testified that Williams entered
her bedroom at night once or twice a week over a two-year period. During those
occasions, Williams would lick or touch her vagina, and on at least one occasion,
Williams grabbed Kaylee’s hand and made her touch his penis. Kaylee testified that
Williams would whisper in her ear on some of these occasions, described him
whispering “very sexual things” to her on another occasion, and testified that
Williams once asked her “how it felt” and that he “hope[d] [she] liked it.”
10
As for the arguments of counsel, there was no mention of any of the mens rea
requirements during closing arguments; rather, the closing arguments focused on
whether Williams had committed the abuse or not. As to other relevant information
from the trial, we note that during voir dire, the State mentioned that aggravated
sexual assault of a child occurs when “[a] defendant . . . intentionally or knowingly
causes the sexual organ to contact . . .” and that indecency with a child occurs when
“the defendant did it with the intent to arouse or gratify the sexual desires of any
person.”
Based on our review of these factors, we cannot say that the alleged error
egregiously harmed Williams. See Nava, 415 S.W.3d at 298; Taylor, 332 S.W.3d at 490;
Almanza, 686 S.W.2d at 171. We overrule Williams’s first issue.
3. Complaint that the Trial Court Erred by Giving an Improper
Instruction Regarding the CSA Statute’s Duration
Requirement
In his second issue, Williams argues that the trial court erred by giving an
improper instruction regarding the CSA statute’s duration requirement. Williams
argues that the charge authorized the jury to convict him of CSA without requiring a
finding that he had committed two underlying acts of sexual abuse during a period
that is thirty or more days in duration.
Pursuant to the CSA statute, a person commits continuous sexual abuse of a
young child if “during a period that is 30 or more days in duration, the person
commits two or more acts of sexual abuse” against a child younger than fourteen.
11
Tex. Penal Code Ann. § 21.02(b). The law requires that the last act of sexual abuse
occur on at least the twenty-ninth day after the day of the first act. See Clark v. State,
No. 02-19-00131-CR, 2020 WL 5949925, at *3 (Tex. App.—Fort Worth Oct. 8, 2020,
no pet.) (mem. op., not designated for publication) (“[T]here must be some proof,
whether circumstantial or direct, that the last act of sexual abuse occurred on at least
the 29th day after the day of the first act.”).
Here, the jury charge contains the following relevant portions concerning the
CSA statute’s duration requirement:
A person commits the offense of continuous sexual abuse of a
young child or children if, during a period of time that is 30 or more
days in duration, the person commits two or more acts of sexual
abuse . . . .
....
[I]n order to find the defendant guilty of the offense of
continuous sexual abuse of a young child or children, you must
unanimously agree that the defendant, during a period that is 30 or more
days in duration, on or about the 12th day of June 2012, through the
16th day of April 2017, as charged in the indictment, committed two or
more acts of sexual abuse.
....
APPLICATION PARAGRAPH ONE
Now, if you find from the evidence beyond a reasonable doubt,
that [Williams] . . . during a period of time that is 30 days or more in
duration, on or about the 12th day of June 2012, through the 16th day of
April 2017, did commit two or more acts of sexual abuse . . . .
12
Williams contends that the above language was improper because it “permitted
a conviction if the jury believed any two acts occurred between the dates alleged in the
indictment, without regard to the 30 day requirement.”
Williams also complains that the trial court did not follow the pattern jury
charge for CSA. Specifically, he points to an instruction in the pattern jury charge
that states, “[Y]ou must all agree that at least thirty days passed between the first and
last acts of sexual abuse committed by the defendant.” Comm. on Pattern Jury
Charges, State Bar of Tex., Texas Criminal Pattern Jury Charges: Crimes Against Persons &
Property PJC 84.2 (2016). Although a trial court is not required to follow the pattern
jury charges, the pattern jury charges should act as a guide for both the trial court and
the bar. Rembert Enters., Inc. v. 1309, LLC, No. 02-18-00330-CV, 2019 WL 3334425, at
*1 n.1 (Tex. App.—Fort Worth July 25, 2019, no pet.) (mem. op.); Marin Real Est.
Partners, L.P. v. Vogt, 373 S.W.3d 57, 90 (Tex. App.—San Antonio 2011, no pet.).
The crux of the argument seems to be that because the jury charge mentioned
“a period of time that is 30 days or more in duration” and then included two dates
that were themselves more than thirty days apart in the same sentence—June 12,
2012, and April 16, 2017—the instructions indicated that the jury could convict
Williams based on two acts that occurred between those two dates, even if the acts
themselves were less than thirty days apart.6 The State counters that the above
We note that the pattern jury charge for CSA instructs that one of the
6
elements for CSA is that “the defendant in [county] County, Texas, during a period
13
language in the charge “directly tracks the language of the [CSA] statute” and, thus, “it
cannot be error.”7
We will assume, without deciding, that the trial court erred by giving an
improper instruction regarding the CSA statute’s duration requirement.8 Because
Williams did not object to the jury charge on this basis at trial, we must determine
between on or about [date] and on or about [date], committed two or more of the
following alleged acts of sexual abuse . . . .” Texas Criminal Pattern Jury Charges: Crimes
Against Persons & Property PJC 84.2. That pattern jury charge differs from the one here
that stated, in pertinent part, “during a period of time that is 30 days or more in
duration, on or about the 12th day of June 2012, through the 16th day of April 2017.”
7
Of course, the language in the jury charge does not “directly track” the
language of the CSA statute because the CSA statute does not include a specific date
range for the offenses like the jury charge does. Compare Tex. Penal Code Ann.
§ 21.02(b) (stating that a person commits an offense if “during a period that is 30 or
more days in duration, the person commits two or more acts of sexual abuse”) with
the jury charge here (stating that a person commits an offense if “during a period of
time that is 30 days or more in duration, on or about the 12th day of June 2012,
through the 16th day of April 2017, [the person] did commit two or more acts of
sexual abuse”).
8
An error analysis is not required when a harm analysis is dispositive. Wooten v.
State, 400 S.W.3d 601, 607 (Tex. Crim. App. 2013) (“Finding our harm analysis thus
dispositive, we need not address whether the trial court did, in fact, err not to include
the instruction.”); Delangelhernandez v. State, No. 02-19-00022-CR, 2020 WL 101879, at
*2 (Tex. App.—Fort Worth Jan. 9, 2020, no pet.) (mem. op., not designated for
publication) (assuming, without deciding, that the jury charge contained error but
concluding that the assumed error did not cause egregious harm); Roberts v. State,
No. 02-17-00108-CR, 2018 WL 1755223, at *3 n.5 (Tex. App.—Fort Worth Apr. 12,
2018, no pet.) (per curiam) (mem. op., not designated for publication) (same).
Because we will ultimately determine that the alleged error did not cause egregious
harm, we will simply assume error, without deciding it.
14
whether egregious harm occurred as a result of the alleged error. See Nava,
415 S.W.3d at 298; Almanza, 686 S.W.2d at 171.
Here, when considering the entire jury charge, we note that while the
application paragraph did not track the CSA statute,9 the abstract portion of the
charge did—the abstract portion noted that “[a] person commits the offense of
continuous sexual abuse of a young child or children if, during a period of time that is
30 or more days in duration, the person commits two or more acts of sexual abuse.”
The inclusion of that language in the abstract portion acts to mitigate any harm from
erroneous language in the application paragraph. See Jimenez v. State, No. 07-13-00303-
CR, 2015 WL 6522867, at *6 (Tex. App.—Amarillo Oct. 26, 2015, pet. ref’d) (mem.
op., not designated for publication) (noting that correct instructions elsewhere in the
charge “serve to mitigate the impact of the erroneous application paragraph
language”).
As to the state of the evidence, Kaylee testified that Williams entered her room
at night and sexually abused her approximately once or twice a week over a two-year
period when she was in the fourth and fifth grades. When pressed on cross-
examination, Kaylee stated that the abuse happened “over 200 times.” Kaylee also
specifically described an occasion that she said had occurred when she was in the
9
We note that the indictment also did not “directly track” the CSA statute, as it
alleged that Williams “during a period of time that is 30 days or more in duration, on
or about the 12th day of June 2012, through the 16th day of April 2017, did commit
two or more acts of sexual abuse . . . .”
15
fourth grade where Williams licked her vagina and fondled her breasts, and she
specifically described another occasion that she said had occurred in “like the
beginning of fifth grade” where Williams “did the exact same thing.” The state of the
evidence strongly weighs against a finding of egregious harm because there was no
evidence that the only acts of sexual abuse occurred less than thirty days apart; to the
contrary, there was ample evidence that Williams, during a period of time that was
thirty or more days in duration, committed two or more acts of sexual abuse against
Kaylee. See Tex. Penal Code Ann. § 21.02(b).
As to the arguments of counsel, during closing argument, the prosecutor
explained to the jury that “[t]he 12 of you just have to believe that there were at least
two sexual acts . . . that were committed in a duration more than 30 days.” The
prosecutor then referred the jury to a demonstrative exhibit that provided a timeline
of the sexual abuse, noting that certain acts were done to Kaylee when she was in the
fourth grade and other acts were done to Kaylee when she was in the fifth grade.
Later during closing, the prosecutor referred to the application paragraph, stating,
Application Paragraph 1 is the continuous violence against a child,
and that is what we are asking you to convict the defendant of. And
what that means is that you believe [Kaylee], that you believe her when
she says that these sexual acts occurred to her over more than a 30-day
period. Okay. The charge says if you find the defendant guilty of
continuous sexual abuse of a child in Application Paragraph 1, you stop
there. You do not have to consider 2, 3, or 4. And I’m going to put that
in context—context for you. Two, 3, and 4 means that you believe that
one of those things happened, one of those sexual acts. You don’t
believe that it was over this long period of time that she said. . . .
16
We are not asking you to consider those because we believe that
we met Application Paragraph 1 for continuous. Because what finding
him guilty of those other things would be is you telling [Kaylee] what
happened to her and not listening to her tell you what happened to her.
Either you believe her entirely or you don’t. That’s the State’s position.
You believe that she was sexually abuse[d] for years or you don’t. And if
you don’t, you find him not guilty.
As to other relevant information from the trial, we note that during voir dire,
the prosecutor explained the CSA duration requirement to the jury,
When I talked about my burden of proof, these are the elements
that I have to prove beyond a reasonable doubt, each one of these.
So they are the defendant . . . during a period of time that is 30
days or more in duration, commit two acts—two or more acts of sexual
abuse against a child under 14 years of age, and the defendant was 17
years of age or older.
....
So going back, just to highlight quickly on continuous sexual
abuse. Remember, it is during a period of time that is over 30 days in
duration, so outside of one month. If there was 25 acts within the 30
days, that is not continuous sexual assault. The State has to prove that
there was two acts outside that 30 days, and it is continuous.
....
All that I have to prove, that there were two acts outside of the 30
days. So you may hear about 20 different acts, or 10 different acts or
five. You don’t have to agree on which two you think occurred. You
just have to agree as a jury that two occurred outside that 30 days.
Based on our review of these factors, we cannot say that the alleged error
egregiously harmed Williams. See Nava, 415 S.W.3d at 298; Taylor, 332 S.W.3d at 490;
Almanza, 686 S.W.2d at 171. We overrule Williams’s second issue.
17
4. Complaint that the Trial Court Erred by Not Requiring
Unanimity in the Charge
In his third issue, Williams argues that the trial court erred by not requiring
unanimity in the charge. Specifically, Williams contends that unanimity is required
under the CSA statute as to the underlying offenses and that the trial court erred by
not including such an instruction in the charge. See Tex. Penal Code Ann. § 21.02.
We have previously rejected this argument on multiple occasions. See, e.g., Heide v.
State, No. 02-20-00056-CR, 2021 WL 2460734, at *3 (Tex. App.—Fort Worth
June 17, 2021, pet. ref’d) (mem. op., not designated for publication) (holding that the
CSA statute does not violate a defendant’s right to a unanimous jury verdict); Salinas v.
State, No. 02-18-00060-CR, 2019 WL 1574953, at *11 (Tex. App.—Fort Worth
Apr. 11, 2019, pet. ref’d) (mem. op., not designated for publication) (noting that “this
court has already held that the [CSA] statute does not violate a constitutional right to a
unanimous jury verdict”); Waters v. State, No. 02-17-00368-CR, 2018 WL 6565939, at
*1 (Tex. App.—Fort Worth Dec. 13, 2018, pet. ref’d) (mem. op., not designated for
publication) (same); Ingram v. State, 503 S.W.3d 745, 748 (Tex. App.—Fort Worth
2016, pet. ref’d) (“[W]e and other courts of appeals have held that the specific acts of
sexual abuse alleged to have constituted CSA are not separate elements of the offense
subject to the unanimity requirement.”); Pollock v. State, 405 S.W.3d 396, 404–05 (Tex.
App.—Fort Worth 2013, no pet.) (holding that the CSA statute did not violate the
right to jury unanimity, even though the statute did not require jury unanimity on
18
which specific acts of sexual abuse were committed by a defendant or the exact dates
when the acts were committed).
Williams asks us to reconsider our prior holdings in light of the United States
Supreme Court’s opinion in Ramos v. Louisiana, 140 S. Ct. 1390 (2020). In Ramos, the
Court found that the Sixth Amendment right to a jury trial, as incorporated against
the states by the Fourteenth Amendment, requires a unanimous verdict to convict a
defendant of a serious offense. Id. at 1397. Accordingly, the Court declared
unconstitutional certain laws in Louisiana and Oregon that permitted convictions of
serious offenses on jury verdicts agreed to by only ten of twelve jurors. Id. at 1394,
1397.
Having reviewed Ramos, we are unpersuaded by Williams’s argument that the
holding in Ramos somehow invalidates our prior holdings with respect to whether the
CSA statute requires unanimity as to the underlying offenses.10 Our prior holdings
did not turn on the same type of Sixth-Amendment issue as Ramos; rather, they turned
on whether “the specific acts of sexual abuse alleged to have constituted CSA are not
We note that in Allen v. State, 620 S.W.3d 915, 922 (Tex. Crim. App. 2021),
10
the Texas Court of Criminal Appeals stated that it had initially granted leave to the
appellant to file a post-submission ground for review in which the appellant asked
whether, in light of Ramos, a jury must be unanimous on which particular acts of
sexual abuse were committed despite the language of the CSA statute. The court then
noted that, upon further consideration, it had concluded that its decision to grant the
appellant’s motion for leave to file his post-submission ground for review was
improvident, and the court dismissed the appellant’s post-submission ground for
review as improvidently granted. Id.19
separate elements of the offense subject to the unanimity requirement.” Ingram,
503 S.W.3d at 748. We do not see how Ramos changes our precedent that the
underlying offenses are not separate elements subject to the unanimity requirement.11
We thus hold that the trial court did not err in this respect. We overrule Williams’s
third issue.
B. Complaints that the Trial Court Abused Its Discretion by Admitting
Certain Evidence
1. Complaint that the Trial Court Abused Its Discretion by
Admitting the Entire SANE Report
In his fourth issue, Williams argues that the trial court abused its discretion by
admitting the entire SANE report over his hearsay objection. The State counters that
Williams failed to preserve this complaint because Williams’s objection at trial lacked
the specificity needed to preserve the complaint.
A complaint is not preserved for appeal unless it was made to the trial court
“by a timely request, objection, or motion” that “stated the grounds for the ruling that
11
Williams also points us to Richardson v. United States, where the United States
Supreme Court held that to convict a defendant of continuing criminal enterprise, jury
unanimity was required not only that the defendant committed some “continuing
series of violations” but that jury unanimity was required as to which specific
violations made up the “continuing series of violations.” 526 U.S. 813, 815, 824, 119
S. Ct. 1707, 1709, 1713 (1999). Williams argues that the combination of Ramos and
Richardson requires unanimity for the underlying offenses of CSA. But we have
already rejected the notion that Richardson should persuade us to depart from our
precedent. See Salinas, 2019 WL 1574953, at *11; Olage v. State, No. 02-18-00184-CR,
2019 WL 1184575, at *1 (Tex. App.—Fort Worth Mar. 14, 2019, no pet.) (mem. op.,
not designated for publication); see also Jacobsen v. State, 325 S.W.3d 733, 736–39 (Tex.
App.—Austin 2010, no pet.) (distinguishing Richardson).
20
the complaining party sought from the trial court with sufficient specificity to make
the trial court aware of the complaint, unless the specific grounds were apparent from
the context.” Tex. R. App. P. 33.1(a). Likewise, under Rule 103 of the Texas Rules of
Evidence, error may not be predicated upon a ruling that admits or excludes evidence
unless a timely objection or motion to strike appears of record, stating the specific
ground of objection, if the specific ground was not apparent from the context. Tex.
R. Evid. 103(a)(1). A party’s objection “must be specific enough so as to let the trial
judge know what he wants, why he thinks himself entitled to it, and do so clearly
enough for the judge to understand him at a time when the trial court is in a proper
position to do something about it.” Resendez v. State, 306 S.W.3d 308, 312–13 (Tex.
Crim. App. 2009) (internal quotations omitted).
When an exhibit contains both admissible and inadmissible material, the
objection to the exhibit must specifically refer to the challenged material to apprise
the trial court of the exact objection. Sonnier v. State, 913 S.W.2d 511, 518 (Tex. Crim.
App. 1995); Lumsden v. State, 564 S.W.3d 858, 898 (Tex. App.—Fort Worth 2018, pet.
ref’d). If the party who objects to the exhibit containing both admissible and
inadmissible material does not specify which part of the exhibit is not admissible, the
asserted error in admitting the material is not preserved for review. Wintters v. State,
616 S.W.2d 197, 202 (Tex. Crim. App. [Panel Op.] 1981); Lumsden, 564 S.W.3d at 898.
The Texas Court of Criminal Appeals has made clear that this approach gives the trial
court carte blanche to overrule the objection:
21
The trial court need never sort through challenged evidence in order to
segregate the admissible from the excludable, nor is the trial court
required to admit only the former part or exclude only the latter part. If
evidence is offered and challenged which contains some of each, the trial
court may safely admit it all or exclude it all, and the losing party, no
matter who he is, will be made to suffer on appeal the consequences of
his insufficiently specific offer or objection.
Jones v. State, 843 S.W.2d 487, 492 (Tex. Crim. App. 1992), abrogated in part on other
grounds by Maxwell v. State, 48 S.W.3d 196 (Tex. Crim. App. 2001).
Here, when the State offered the SANE report into evidence, Williams’s
counsel objected on the grounds that “[i]t contains a bunch of hearsay.” The trial
court then asked Williams’s counsel to specify what portions of the report were being
objected to, and Williams’s counsel responded that he was “objecting to all of these
parts going into the record.” The trial court then said, “Well, you’re going to have to
be more specific if . . . some of it is admissible.” Williams’s counsel then said, “Well,
anything that she gave a statement about would be hearsay.” Williams continued his
objection, stating that it “contains hearsay, and it contains a lot of—a lot of
statements that have nothing to do with medical purposes or treatment.” The trial
court ultimately admitted the SANE report.
Our review of the record reveals that the SANE report that Williams complains
of contains at least some evidence that the trial court would not have abused its
discretion by admitting—statements that were made for and reasonably pertinent to
medical diagnosis or treatment. See Tex. R. Evid. 803(4). Thus, to preserve error,
Williams was required to identify for the trial court the portions of the SANE report
22
that he considered inadmissible. See Sonnier, 913 S.W.2d at 518; Jones, 843 S.W.2d at
492; Lumsden, 564 S.W.3d at 898. Williams failed to do so.12 His global hearsay
objection to the report, without specifying the statements that he found to be
objectionable, failed to preserve error in the trial court’s admission of the report. See
Sonnier, 913 S.W.2d at 518; Jones, 843 S.W.2d at 492; Lumsden, 564 S.W.3d at 898. We
overrule Williams’s fourth issue.
2. Complaint that the Trial Court Abused Its Discretion by
Admitting an Extraneous-Offense Allegation
In his fifth issue, Williams argues that the trial court abused its discretion by
admitting an extraneous-offense allegation that Williams had also sexually abused
Aubrey, Kaylee’s cousin.
Generally, extraneous-offense evidence is not admissible at the guilt phase of a
trial to prove that a defendant committed the charged offense in conformity with his
own bad character. Tex. R. Evid. 404(b); Devoe v. State, 354 S.W.3d 457, 469 (Tex.
Crim. App. 2011). But extraneous-offense evidence may be admissible when it has
relevance apart from character conformity, such as to prove motive, opportunity,
intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident.
12
In his appellate brief, Williams now provides specific statements contained in
the SANE report that he claims are inadmissible hearsay. But Williams’s specific
objections now made on appeal do not comport with his global hearsay objection
made at trial, and we will not consider them. See Nelson v. State, 607 S.W.2d 554, 555
(Tex. Crim. App. [Panel Op.] 1980); Anderson v. State, No. 02-18-00198-CR, 2019 WL
2429405, at *10 (Tex. App.—Fort Worth June 6, 2019, no pet.) (mem. op., not
designated for publication).
23
Tex. R. Evid. 404(b)(2); Devoe, 354 S.W.3d at 469. Extraneous-offense evidence may
also be admissible to rebut a defensive theory if a party “opens the door” to the
evidence by leaving a false impression with the jury in a manner inviting the opposing
party to respond. Hayden v. State, 296 S.W.3d 549, 554 (Tex. Crim. App. 2009).
A trial court’s ruling on the admissibility of extraneous-offense evidence is
reviewed for an abuse of discretion. De La Paz v. State, 279 S.W.3d 336, 343 (Tex.
Crim. App. 2009). As long as the ruling is within the zone of reasonable
disagreement, there is no abuse of discretion, and the ruling will be upheld. Id. at
343–44. A trial court’s ruling admitting extraneous-offense evidence is generally
within this zone if the evidence shows that (1) an extraneous transaction is relevant to
a material, nonpropensity issue, and (2) the probative value of the evidence is not
substantially outweighed by the danger of unfair prejudice, confusion of the issue, or
misleading of the jury. Devoe, 354 S.W.3d at 469; De La Paz, 279 S.W.3d at 344.
Here, during the State’s examination of Kaylee, Kaylee testified that she had
met with CPS to discuss the abuse. She also testified that she had not told her parents
about the abuse because she did not think they would believe her. On cross-
examination, the following exchange occurred between Kaylee and Williams’s
counsel:
Q. And I think the State asked you, did you ever talk to somebody from
CPS?
A. Yes.
24
Q. Okay. How many times?
A. The first time somebody had said that he was doing it, and I denied
it because I was scared, and I had to go see them twice, and this time
that—that it happened, I had to go see them, I think twice, too.
Q. Okay. Let me ask you a little bit about that, then. Because you had
said, when the State asked a question, why—why didn’t you say
anything to anyone, and I think your answer was you were afraid
they wouldn’t believe you?
A. Yes.
Q. Okay. But is it fair to say somebody did believe it because they
asked you about it, right?
A. Yes.
Q. Okay. So there was somebody that was from—that you spoke to
from CPS that was asking you about if something happened and you
knew what they were talking about, right?
A. Yes.
Q. But you said it didn’t happen?
A. Yes.
Q. Okay. In fact, I think you spoke to—was it three different ladies
about this?
A. I’m not sure.
Q. It was—it was—well, I’m sorry, I might be confusing you. I think
one of the ladies you spoke to twice, right?
A. Yes.
....
25
Q. So when they asked you about some of these things, and this was—
the interview that you said didn’t happen, that happened first,
correct?
A. Yes. Yes.
Q. Okay. And then it was about, oh, about a year or so later, that’s
when this part about your friend talking to the counselor and
saying—saying things had happened, right?
A. Yes.
Prior to redirect, counsel for both sides approached the bench, and the
prosecutor informed the trial court that the State intended to elicit from Kaylee why
she had been interviewed by CPS on multiple occasions, testimony that would
implicate the fact that one of the CPS interviews involved allegations of abuse by
Williams against both Kaylee and Aubrey. The State maintained that Williams’s
counsel had “opened the door” to such questioning by asking Kaylee on cross-
examination how many times she had met with CPS. Williams’s counsel objected to
the introduction of such evidence, but the trial court said it was going to allow the
evidence. During redirect, the following exchange occurred:
Q. So the first time that you talked to CPS . . . does it sound right that
that was in 2016?
A. Yes.
Q. And the time that you went to go talk to the CPS worker, had you
made any allegation that [Williams] had done anything to you?
A. No.
Q. Why were you talking to CPS?
26
A. Because my cousin had brought it up with her—I think—I think it
was at school, and—and she was talking about me while talking
about [Williams], and it came over to me, and my—the counselor
had to call me down, and I think somebody had talked to me
about—I was in the office about it.
Q. So when you say that your cousin had brought—brought it up,
what’s your cousin’s name?
A. [Aubrey].
Q. And [Aubrey] had brought what up?
A. [Williams] touching us.
Q. [Williams] touching you and her?
A. Yes.
Q. And you had to go talk to somebody from CPS about him touching
[Aubrey] and touching you?
A. Yes.
Williams argues that the trial court abused its discretion by admitting the
evidence relating to the alleged abuse of Aubrey because such evidence was
immaterial and only served to prejudice the jury. Assuming that Williams properly
preserved this complaint, we agree. The evidence relating to the alleged abuse of
Aubrey was immaterial to the abuse of Kaylee that was at issue here, and such
evidence lacked relevance apart from character conformity. And we disagree with the
State’s argument that Williams “opened the door” to the admission of such evidence
27
simply by asking Kaylee how many times she had spoken with CPS. See Hayden,
296 S.W.3d at 554.
Error in the admission of extraneous-offense evidence is nonconstitutional
error. Hernandez v. State, 176 S.W.3d 821, 824–25 (Tex. Crim. App. 2005); Jackson v.
State, No. 02-11-00414-CR, 2012 WL 6049074, at *5 (Tex. App.—Fort Worth Dec. 6,
2012, pet. ref’d) (mem. op., not designated for publication). Because the error is not
constitutional, we apply Rule 44.2(b). Tex. R. App. P. 44.2(b). That Rule requires us
to disregard any nonconstitutional error that does not affect an appellant’s substantial
rights. Id. An error that has a “substantial and injurious effect or influence in
determining the jury’s verdict” affects a substantial right. Haley v. State, 173 S.W.3d
510, 518 (Tex. Crim. App. 2005); King v. State, 953 S.W.2d 266, 271 (Tex. Crim. App.
1997). Conversely, an error does not affect a substantial right if we have “fair
assurance that the error did not influence the jury, or had but a slight effect.” Solomon
v. State, 49 S.W.3d 356, 365 (Tex. Crim. App. 2001); Johnson v. State, 967 S.W.2d 410,
417 (Tex. Crim. App. 1998).
In determining the likelihood that a nonconstitutional error adversely affected
the jury’s decision, we review the record as a whole, including any testimony or
physical evidence admitted for the jury’s consideration, the nature of the evidence
supporting the verdict, and the character of the alleged error and how it might be
considered in connection with other evidence in the case. Motilla v. State, 78 S.W.3d
352, 355 (Tex. Crim. App. 2002). We may also consider the jury instructions, the
28
State’s theory and any defensive theories, whether the State emphasized the error,
closing arguments, and even voir dire. Haley, 173 S.W.3d at 518–19; Motilla,
78 S.W.3d at 355–56.
We have reviewed the record as a whole and have found that the extraneous-
offense allegation played a very small role in the trial. While Kaylee testified that
Aubrey had mentioned to CPS that Williams was abusing them both, Kaylee also
testified that she denied the allegation to CPS. And Aubrey—who testified at trial—
did not testify that Williams had abused her. In addition, neither party mentioned the
alleged abuse of Aubrey during closing argument.13 We also note that there was
ample evidence to support Williams’s conviction—namely, Kaylee’s testimony that
Williams had entered her room at night and sexually abused her “over 200 times”—
approximately once or twice a week—over a two-year period when she was in the
fourth and fifth grades.
We conclude that, in the context of the entire case against Williams, the trial
court’s error in admitting the extraneous-offense allegation did not have a substantial
or injurious effect on the jury’s verdict and did not affect Williams’s substantial rights.
See King, 953 S.W.2d at 271. Thus, we must disregard the error. See Tex. R. App.
P. 44.2(b).
While Aubrey was mentioned on a few occasions during closing argument,
13
she was mentioned in the context of her testimony that she had seen Williams put his
hand under Kaylee’s skirt when the three of them were playing a game.
29
We overrule Williams’s fifth issue.
IV. CONCLUSION
Having overruled Williams’s five issues, we affirm the trial court’s judgment.
/s/ Dana Womack
Dana Womack
Justice
Do Not Publish
Tex. R. App. P. 47.2(b)
Delivered: November 10, 2021
30